In Depth

The Indiana Supreme Court Wednesday ordered a trial court to enjoin the Indiana Parole Board from enforcing the conditions
of a man’s parole that prevent him from associating with minors. But the justices denied his request to find the Sex
Offender Management and Monitoring program is unconstitutional.

In 2005, David Bleeke was convicted of residential entry and attempted criminal deviate conduct related to an adult victim.
He was released from incarceration in 2008 and placed on parole until 2015. Several of his parole conditions prohibited him
from having contact with any children – including his own. After a legal challenge, Bleeke may now have contact with
only his children.

The Court of Appeals found that Bleeke shouldn’t be considered as an offender against children based on his attempted
criminal deviate conduct conviction because the statute dictating that classification is only applicable to offenses committed
after July 1, 2006. It also held the SOMM program violated Bleeke’s Fifth Amendment rights. He challenged having to
sign a form that allowed a polygraph examiner to share the results of his test with a probation officer.

The justices agreed that enforcement of conditions 4,5,17,19 and 20 must be enjoined because no evidence was presented that
shows Bleeke is, was, or will be a threat to children – his own or otherwise.

Regarding his SOMM challenge, Justice Steven David wrote for the unanimous court, “The question before us thus becomes
whether this threat to Bleeke—answer the potentially incriminating questions or face re-incarceration—so compelled
(or will compel) his answers that it violates the Fifth Amendment unless he is provided immunity. ... Regardless, we agree
with those other state and federal courts applying McKune (v. Lile, 536 U.S. 24(2002)), and holding that
this form of disciplinary response does not constitute a ‘penalty’ such that Bleeke would have been compelled
to yield his Fifth Amendment privilege.”

“And so while he was incarcerated, the State was permitted to present Bleeke—and all SOMM inmates—with
a constitutionally permissible choice: participate in the SOMM program and maintain a more favorable credit status and/or
privileges within the prison system or a favorable assignment in a community transition program, or refuse to participate
and instead serve out the full term for which he had been lawfully convicted,” David continued.

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